Boulder DA in favor of axing death penalty

County has never tried a capital case

By Mitchell Byars Camera Staff Writer

Posted:
12/29/2012 01:00:00 PM MST

Updated:
12/29/2012 10:47:43 PM MST

Boulder DA Stan Garnett

As Colorado lawmakers consider repealing the death penalty, Boulder District Attorney Stan Garnett said he would most likely be in favor of a bill doing away with capital punishment, a stance that is not surprising given Boulder's history -- or lack thereof -- with the practice.

Three years after a previous attempt to end the death penalty failed, some legislators -- including Boulder's Rep. Claire Levy -- have said they are once again looking into doing so. While Garnett said he would have to review the specific language of any proposed legislation to end it, he did say he supported doing away with the punishment.

"As the D.A. in Boulder I want to be a voice for a progressive approach to law enforcement and public safety," Garnett said. "I don't think the death penalty is a tool that is useful or should be a part of law enforcement in Colorado."

Garnett said the problem with the death penalty is a practical one. Very few cases ever meet the criteria to seek the death penalty, and because trials involving the death penalty take longer and often see more appeals, they cost prosecutors more to take to trial.

"If something is not working or not relevant, I tend to say, 'Why do we even have this on the books?'" Garnett said. "It just isn't used very often."

Michael Radalet, a University of Colorado sociology professor who specializes in research on the death penalty, said there have been only 102 executions in the history of the state. He also pointed out that all three men currently on death row were convicted in Arapahoe County District Court.

"The modern death penalty in Colorado has become politicized, and I say that because all the men on death row are from the same district," he said. "In a lot of other areas the death penalty is a complete non-issue."

The death penalty in Boulder

In the 1870s, a mob in Boulder dragged a suspected horse thief from his Pearl Street hotel and lynched him without a trial. Radalet said that was the last known instance of any sort of criminal execution in the history of Boulder County.

In fact, there hasn't even been a trial in the history of the 20th Judicial District -- which encompasses Boulder County -- that has involved the death penalty. The death penalty was only sought once by former district attorney Alex Hunter against Robert "Tattoo Bob" Landry in 1981, but the case never went to trial after Landry took a plea bargain for a life sentence in prison.

Garnett oversaw two first-degree murder convictions in 2012: Kevin McGregor in the University Hill shooting of Todd Walker, and Michael Clark in the cold-case shooting of Marty Grisham.

While both men received life sentences, Garnett said as long the death penalty is an option his office considers it for every case that could qualify. The process involves weighing aggravating factors like excessive cruelty or an especially vulnerable victim and mitigating factors like mental illness.

"As long as the law is on the books it is my obligation as district attorney to do the formal analysis to decide if it's applicable," Garnett said. "We've looked at it closely in every first-degree murder we've tried."

But Garnett said trials involving the death penalty are extremely expensive and often can drag on for years.

One of the reasons death penalty trials take so long is the difficulty in seating juries. In trials involving the death penalty, prosecutors must ensure the jury members do not have moral objections to execution. Then if that jury finds the defendant guilty, they must then determine if the death penalty is "appropriate" according to Colorado statute.

"You essentially have to select a jury that will tell you that they will be able to return a verdict of death in the right circumstances," Garnett said. "It's why death penalty cases become so expensive and so difficult. You are asking a jury that just made a decision of guilty versus innocent to go into a second full trial where they have to analyze essentially whether a person gets to live or not."

Garnett said he also isn't sure if getting the death penalty in Boulder would even be possible.

"I don't know what Boulder juries would tell you about the death penalty or whether it would be particularly difficult to pose the death question to a jury in Boulder," Garnett said. "I think it would be more difficult than in other counties, but it's hard to predict."

In fact, Levy wouldn't be the first elected official from Boulder to spearhead an effort to stop the death penalty. Former Boulder district attorney Rex Scott led opposition of the practice by the Colorado District Attorneys Association in 1965, telling a newspaper that the death penalty was a remnant of "the Dark Ages concept of eye for an eye," and that adding the penalty increased trial costs, insanity pleas and the risk of executing the innocent.

"I completely agree with Rex Scott and what he said almost 50 years ago," Garnett said.

The death of the death penalty?

Radalet said most of those in favor of the death penalty said it was to give the families of the victims a sense of closure or justice.

"The most often heard justification is that it's for the families of homicide victims, to show that we care," he said. But Radalet said that in the most recent effort to repeal the death penalty in Colorado in 2009, it was those very same families who were leading the effort.

"The families wanted the money to be used to look at unsolved homicides," Radalet said. "The support from families, and indeed in public opinion, wasn't there."

Garnett said in his experience talking with families, their opinions on proper punishment vary but most of them are looking for a speedy trial, not something that is possible with the death penalty involved. Garnett pointed out the case of James Holmes, who is accused of a mass shooting in Aurora and whose case has dragged along as prosecutors are still debating whether they will seek the death penalty.

"Those poor families are just beginning the long, long process through the justice system," Garnett said.

With families no longer behind it and prosecutors even more hesitant to seek it, Radalet said he thinks it is not a question of if the death penalty in Colorado will be repealed, but when.

"Most observers would say within our lifetimes we will see the end of the death penalty nationwide, and it's just a matter of when Colorado will join that effort," he said. "I think it will be abolished within the next few years."

Garnett added trying to change the death penalty statutes or make them more specific was not the answer, either. He cited an opinion against the death penalty written in 1994 by former U.S. Supreme Court Justice Harry Blackmun, who wrote "from this day forward, I no longer shall tinker with the machinery of death."

"It's unseemly for legislatures and lawyers and the courts to spend a whole lot of effort on how to get the death penalty exactly right," Garnett said.